Kansas v. Hendricks - Oral Argument

Argument of Carla J. Stovall

Chief Justice Rehnquist: We'll hear argument now in Number 95-1649, Kansas v. Leroy Hendricks, and 95-9075, Leroy Hendricks v. Kansas.

General Stovall.

Mr. Stovall: Mr. Chief Justice, and may it please the Court:

Throughout the decades, the States have developed three basic ways to deal with persons who commit sex crimes: criminal punishment, treatment in lieu of sentencing, and the law that you have before you today, Kansas's Sexually Violent Predator law, which is a hybrid of both.

Leroy Hendricks has experienced all three during his 40-year history of sexually molesting children.

It was the goal of the Kansas legislature by providing for treatment subsequent to punishment that we could succeed where the other procedures have failed, enabling Kansas to reduce the risk that Leroy Hendricks poses to our children.

The civil commitment of sex offenders who suffer from a mental condition linked to their sex crimes has been approved by this Court on two prior occasions, by Pearson in 1940 and Allen in 1986.

The Court's guidance in what is the constitutional minimal for an acceptable level of mental condition for commitment is found in the Addington decision, wherein the Court proscribed confinement for merely idiosyncratic behavior, or conduct that is not within the generally acceptable bounds of conduct.

Surely no one would argue that Leroy Hendricks was engaging in merely idiosyncratic behavior.

Unknown Speaker: General Stovall, may I ask you whether... how you fit this kind of a law into any situation with which we have previously dealt?

It seems to be kind of a new category of--

Mr. Stovall: Only insofar as that we have--

Unknown Speaker: --confinement.

Mr. Stovall: --treated subsequent to punishment, Your Honor, instead of treatment in lieu of sentencing.

Unknown Speaker: How would this be cabined in the future, do you think, if we uphold it?

Could a State lock up any kind of violent offender who's diagnosed as having a mental abnormality of some kind, not mentally ill, and at the same time be likely to commit more crimes in the future?

Mr. Stovall: I think, Justice O'Connor, as long as the State could show that there's a medical justification for a diagnosis and that we can show dangerousness--

Unknown Speaker: Not of mental illness, but of some kind of mental aberration or personality disorder.

Mr. Stovall: --Well, the term mental illness is one that this Court has certainly used in its decisions but never defined and, in fact, in Addington, where the language of mental illness was used, the Court also used mental disorder, mental disease, emotional disorder, emotional disturbance, almost synonymously and interchangeably, and so I would submit the mental abnormality that Kansas has in our statute is not different from those things that you have previously approved.

Unknown Speaker: Well, General Stovall, don't you think in using those terms in our opinions we are certainly lay people from a medical point of view, and they probably are not used in any strict medical sense.

Mr. Stovall: And I'm a lay person in that regard, too, Your Honor, but when you look, Mr. Chief Justice, at the DSM, where we... where the psychiatric profession describes particular kinds of condition, the things that the medical community tends to understand would fit within this definition would be two paraphilias, which are pedophilia and sexual sadism, which are terms that have been recognized by the community and still would fit within this definition.

Unknown Speaker: General Stovall, can I clarify that you are not trying to... you're not suggesting that this Court ought to establish some kind of national standard for what is mental illness or mental abnormality.

Haven't those definitions been left to the States?

Mr. Stovall: Justice Ginsburg, that's exactly right, and that's what the State of Kansas would ask us... ask you to do, so long as we still have a mental justification, a medical justification for commitment and we show dangerousness.

Unknown Speaker: Well, I take it that even the DSM says that these categories have no real operational consistency, and that you look to the diagnosis or the prognosis on a case-by-case basis after clinical evaluation.

Mr. Stovall: That's true, Justice Kennedy, and in fact the DSM in the beginning of the introduction part says that this was not created for legal use or for forensic meaning, but it's to aid the psychiatric profession in making some diagnosis that they then can apply to this definition in the Kansas statute of mental abnormality.

Unknown Speaker: You begin by saying, and this was part of Justice O'Connor's line of questioning, too, that this is a hybrid between a criminal statute and a civil statute.

I should think, and correct me if I'm wrong, that--

Mr. Stovall: It's a hybrid... I'm sorry.

It's a hybrid between criminal sentencing and treatment in lieu of punishment, but it's clearly a civil commitment.

Unknown Speaker: --Yes, and I was going to say it seems to me that your argument in your brief at least is one in which you can justify this statute strictly as a civil commitment.

If your statutory scheme were changed somewhat and you had an adequate prognosis of dangerous sexual behavior, civil commitment could follow under your argument, I take it.

Mr. Stovall: Yes.

In fact, this Court has specifically approved in Baxstrom in 1966 being able to civilly commit mentally ill inmates at the conclusion of their prison sentence, and so this is no different than what you have approved previously, except that we have crafted out a very specific mental commitment statute for this particular group of offenders.

Unknown Speaker: And also that there's no difference in this man than there was the day he went into prison.

That's what's unusual about this, isn't it?

If he is in this category of having a mental abnormality, he's no more or less abnormal at the time he finishes his criminal sentence than he was the day he began to serve it.

Mr. Stovall: Justice Ginsburg, that would be true for Leroy Hendricks, who certainly is the respondent here, but Kansas in our prison system has the ability and, in fact, requires inmates that are convicted of sex offenses to go through treatment, so they do have the ability while receiving treatment in prison to shed themselves not of the diagnosis of pedophilia, for example, but of the later part of the definition, which is being likely to continue to engage in predatory acts of sexual violence, because they've gone through treatment.

And so we have seen that happen, that if they complete treatment, they might not have the abnormality on the inside, whereas your question was, are they going to come in with it.

They're not going to develop one while they're in, so if they come in with one, then they will have that before they enter the prison--

Unknown Speaker: Well, I--

--Do you have some studies that we could refer to to support that?

My impression was that the psychiatrists cannot really, or clinicians, certify the patient as being unlikely to repeat unless they observe him in a normal environment, and he's not in a normal environment when he's in prison, so it's just somewhat circular.

Mr. Stovall: --There are many studies that were cited in our brief, Justice Kennedy.

Two that come to mind talk about the efficacy of treatment of a cognitive behavioral-based treatment which is what we provide, and that is certainly the state of the art now in the psychiatric community for sex offenders.

One study would show that people that went through treatment had an 8-percent rate of recidivism, whereas people that didn't go through had a 20-percent rate, and that was coming out of a State hospital in California, so it was a confined environment.

I--

Unknown Speaker: Is 8 percent high enough?

I mean, what if the State says, you know, 8 percent is still too high a risk?

At what percentage of unlikelihood to commit more of these offenses does the State release these individuals?

Mr. Stovall: --Justice Scalia, that would be a question for the judge and jury to decide.

A psychiatric professional would have to make the determination.

Unknown Speaker: Well, what do you tell the jury, you know?

Is there no chance that this individual will commit acts of these... of this sort again if he's released, or is there an 8-percent chance, or a... what do you tell the jury?

Mr. Stovall: The jury instructions in Kansas just simply ask them to find whether or not he is likely to continue to engage in predatory acts of sexual violence.

The testimony at the trial--

Unknown Speaker: Likely.

What was that, 49 percent would not do it?

Mr. Stovall: --I would be willing to assert that it's 51 percent, Justice Scalia, and the testimony at the trial--

Unknown Speaker: That's pretty generous.

If it's, you know, 51-49 that he'll continue to do this you let him lose.

Mr. Stovall: --There has been no determination as to what percent that is, and we don't give that guidance to the jury in Kansas, but Dr. Befort, who testified at the sex predator trial, testified in his view that... he was saying that Mr. Hendricks would reoffend within a 51-percent chance.

Unknown Speaker: Well, you don't define reasonable doubt in criminal cases in terms of 15 percent, or 12 percent.

We've never required that sort of precision.

Mr. Stovall: That's true, Mr. Chief Justice, and we don't give any more of that decision within our statute as well, but--

Unknown Speaker: And what if it's clear that treatment will not be effective?

What if the convicted defendant puts on psychiatric testimony that says, you know, you can talk about treating this all you like, but there's no effective treatment?

Mr. Stovall: --What Kansas has done is to provide for treatment, and I think that's all that we have to do, and not show that Mr. Hendricks, for example--

Unknown Speaker: Even when treatment is ineffective.

You generously provide for treatment when there's no reason to think the treatment's going to do any good.

Mr. Stovall: --Let me clarify, Justice Scalia.

Do you mean for the particular person being--

Unknown Speaker: For the particular person.

Suppose the evidence is clear that, yes, he will do it again if he's released, but treatment is not going to help that at all.

Mr. Stovall: --I think in that case we still have the ability to commit an individual, because we're providing for the treatment.

We're doing everything that we can--

Unknown Speaker: Well, the Court--

--Because you're providing for a treatment that is not going to do any good?

Mr. Stovall: --But we don't... I don't know that we--

Unknown Speaker: I mean, I can understand your position we can commit him, treatment or not, just because he's dangerous, you know, and we can commit him and not even provide any treatment.

I can understand that.

But I can't understand the position that we can only commit him if we provide treatment, even though it's entirely clear that treatment will do entirely no good.

Mr. Stovall: --The Court has never required, in my understanding, for a State to be able to show that a cure is guaranteed for somebody or that they will necessarily benefit from it, and so--

Unknown Speaker: But that's not necessarily this case, I take it, because you're at least claiming that this man is treatable to some degree.

I don't know how much, but you're claiming that there is some treatability in his condition, isn't that correct?

Mr. Stovall: --Absolutely, Justice Souter.

Unknown Speaker: Now... so that in the challenge that we've got before us we would not, in order to hold your way, have to go beyond saying, I suppose, that this was mental illness within the meaning of the term as we used it in Foucha, because of two things.

Number 1, it fell into at least a recognized psychiatric category, which gets us away from a purely idiosyncratic judgment about one individual's dangerousness, and it is a treatable condition, and that's all you would need to win.

Am I correct?

Mr. Stovall: As long as we show dangerousness as well.

Unknown Speaker: So far as the mental illness category... yes.

Yes.

Yes.

Mr. Stovall: I mean, I think we have that obligation as well.

Unknown Speaker: So we could... if we ruled your way we could leave for another day the question of what to do under, we'll say, the Foucha rule, in a case in which there was a recognized psychiatric category of abnormality but one that was totally untreatable, one that was permanent.

Nothing could be done about it.

Mr. Stovall: I would agree with that.

Unknown Speaker: So you don't have to have as broad a rule as you were speaking--

--May I clarify one thing?

The court below indicated that Kansas contemplated in the future some kind of treatment, but wasn't providing any.

Has that changed?

Mr. Stovall: Justice O'Connor, what the Kansas supreme court did was look at one prior district court ruling in the... a motion for a new trial which found that there was treatment.

A subsequent habeas corpus proceeding at the trial level found there was treatment in Kansas.

The supreme court seemed to not question that there was some level of treatment in Kansas but questioned the efficacy of treatment in the community in general.

Unknown Speaker: Well, could you just answer the question?

Mr. Stovall: I'm sorry.

Unknown Speaker: Is Kansas providing any treatment for these people?

Mr. Stovall: Absolutely, Justice O'Connor.

They--

Unknown Speaker: And what kind of treatment, other than locking them up in a special ward?

Mr. Stovall: --Cognitive behavioral-based treatment.

Unknown Speaker: What is that?

It doesn't mean anything to me.

Mr. Stovall: It didn't to me in the beginning of this case either, Justice O'Connor.

It is a... it's a method of looking at the cognitive distortion somebody has, the maladaptive thinking patterns that lead them to commit maladaptive behavior.

Within this context it's sexual behavior.

In addition to that--

Unknown Speaker: What kind of treatment is that?

I just don't understand.

Are you trying to train people to think differently, or what is the treatment?

Mr. Stovall: --Part of it does have to do with stopping those thinking patterns, helping them identify, for one thing, what their thinking patterns are that are maladaptive and not like the rest of us, and then how to stop the behavior, how to stop the thinking patterns from leading directly into that behavior, and there is certainly some level of behavior modification in the program.

They receive 31-1/2 hours of treatment per week.

Part of it is this cognitive-based theory as well as the general issues of social skills, self-esteem, anger management, rebuilding relationships, family issues, value clarifications, the gamut of treatment--

Unknown Speaker: General Stovall--

--I thought... maybe I'm wrong.

I thought the whole point of the DSM was that this is not a cognitive disorder.

Mr. Stovall: --But the--

Unknown Speaker: I mean... you know, correct me if that's wrong.

Mr. Stovall: --The definition of mental abnormality in our Kansas statute is that it is a congenital or an acquired condition, and that--

Unknown Speaker: But that's not cognitive.

Mr. Stovall: --You're correct, Justice O... Justice Kennedy.

The treatment is a combination of both cognitive restructuring as well as behavior modification, and so they need to initially be able to identify the cognitive... the thinking distortions that occur instead of just... like, 30 years ago all we would have done is sort of the 12-step addiction model, try to deal with the behavior and not the thought processes that preceded that behavior.

Unknown Speaker: May I ask you a question about this statute and what the State's position is?

The statute defines a sexually violent predator as a person who has been convicted or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence.

Would this statute be constitutional, in your view, if it left out the requirement that there be a prior conviction, if it were like the Illinois statute on which you rely?

Just, they come in with an indictment of this and say, in addition we think he's likely to do it in the future.

Would that be constitutional?

Mr. Stovall: I think so, Justice Stevens.

what Kansas has chosen to do, though--

Unknown Speaker: So really the prior convictions are merely the evidentiary support under the statute for the finding that it's more likely than not that this person will be violent.

Mr. Stovall: --It's somewhat evidence of that, as well as it's a limiting of Kansas' decision who to commit.

We can't just pick somebody off the street--

Unknown Speaker: But why not?

That's what puzzles me.

Mr. Stovall: --Oh, constitutionally I think that we could, but the legislature chose to very narrowly define--

Unknown Speaker: Only those who have previously been punished, or ones who would be--

Mr. Stovall: --Because the idea is that we're trying to identify those that pose the greatest risk to the community.

Unknown Speaker: --But I don't understand why a person who's indicted on very strong evidence, probable cause, shouldn't be subjected to exactly the same treatment.

Mr. Stovall: There are certainly those that would argue, Justice Stevens, that we should have more expanded the law--

Unknown Speaker: Yes.

Mr. Stovall: --to include more people in it, but that's not what the legislature chose to do, though.

Unknown Speaker: You agree that it is a preponderance standard that's determinative here.

It has to be more likely than not than the person will engage in this kind of conduct in the future.

Mr. Stovall: More likely than not about the dangerousness, but the State has a beyond a reasonable doubt--

Unknown Speaker: Oh, beyond a reasonable doubt of proving that he's likely to do it.

Mr. Stovall: --Exactly.

Unknown Speaker: Which boils down to a preponderance standard, of course.

Do you agree that, at least under the law as it exists this morning, if you were providing no treatment at all, and that could be shown, that an individual would be entitled to release on habeas?

Mr. Stovall: I think this Court has... as I read decisions of the Court has never been extremely clear as to whether or not treatment is absolutely required.

I'm fortunate that we don't have that issue in Kansas because we do provide for treatment.

Unknown Speaker: Well, it's--

Mr. Stovall: I think it's--

Unknown Speaker: --I'm sorry.

At least for purposes of the case that you've brought to us it would be sufficient to decide the case, I suppose, on the mental illness ground to say that this was a treatable condition and therefore qualified as mental illness within the meaning of the term in Foucha, and that implies treatability, I presume.

And I suppose the treatability in a way is kind of a quid pro quo for the capacity of the State to lock somebody up, so that if we went no further than the Foucha rule and no further than the rule that would cover the case that you've brought to us this morning, I would suppose that a failure or a refusal to treat would be grounds for release.

Would you agree with that?

Mr. Stovall: --And Mr. Hendricks' certainly would have the ability to file a habeas action in either State or Federal court challenging that if he were not getting any sort of treatment at all, or if he was unable to be released without... for that reason.

Unknown Speaker: Yes.

Well, I suppose the quid pro quo for locking him up, or the reason for locking him up is that he's a danger to others, and that treatability bears on the fairness of the conditions of his confinement.

That is to say, it is thought that it is unfair to confine him without treatment if there's any likelihood of success.

Is that the underlying rationale?

Mr. Stovall: Well, it is for us.

It's an easy call to make for us, Justice Kennedy, because we do provide for treatment.

Whether or not--

Unknown Speaker: I'm talking about the general rule.

Mr. Stovall: --I think that that's correct, that that's... the decisions have indicated by some justices that there need to be some level of treatment and others have sort of left the door open, but from Kansas' standpoint it's an easier call because we clearly do provide treatment.

Unknown Speaker: General Stovall, will you be devoting some of your oral argument to a response to the cross-petitioner's claims?

Mr. Stovall: If I have the opportunity to do that, Mr. Chief Justice.

Unknown Speaker: Yes.

Let's hope you do.

And perhaps you could also respond to how far does this spread?

Could you apply the same theory to, say, arsonists?

It is something new in the preventative detention line, isn't it?

Mr. Stovall: It is somewhat, although for the last 60 years States have been dealing with a way to be able to civilly detain sex offenders in particular.

They've not looked to do that for arsonists or others, but in the... in 1940 this Court approved the Pearson decision that did allow for commitment of someone with a sex offense.

But I think Justice O'Connor in the beginning asked the question that I think relates to this, and that is, I think as long as a State can demonstrate that there is a medically justified condition and that there is a manifestation of a threat to be the dangerousness element, that a State probably could do that if there was some level of harm that they were trying to prevent and identify.

Unknown Speaker: When you say--

--May I just ask, then why isn't this case covered by Addington v. Texas, where you require clear and convincing evidence, and you only require more likely than not?

Mr. Stovall: I think clear and convincing would be sufficient from a constitutional perspective.

Unknown Speaker: But, see, you don't provide that.

You just say it has to be likely that it'll do this.

It's beyond a reasonable doubt that it'll be likely, but it's really a preponderance standard, which is not... doesn't comply with Addington.

Mr. Stovall: But only one of the elements, though, of the definition would be likely to--

Unknown Speaker: Well, the fact that likely do the... commit the harm to the... to children.

Mr. Stovall: --Right, and the other is the mental abnormality, and taken in totality we have beyond a reasonable doubt to show that.

Unknown Speaker: But a key element doesn't require beyond a reasonable doubt.

The key element of the definition just requires that they be likely to do it.

That's a preponderance standard.

Mr. Stovall: Well, I still think overall the State has to be able to sustain that burden of proof beyond a reasonable doubt.

Unknown Speaker: It has to prove that it's likely beyond a reasonable doubt, but that's... you can't... you know--

Mr. Stovall: I think even if you--

Unknown Speaker: --That's still 51 percent.

When you speak of a... I think you spoke of a medically... you didn't use the word medically recognized category.

What was the term you used?

Mr. Stovall: --Medically justified.

Unknown Speaker: Medically justified.

Do you mean by that a category which is recognized in some standard medical literature like the DSM manual?

Mr. Stovall: I don't think we are limited, Justice Souter, just to the DSM, but I think certainly the psychiatric community has to believe that this is a condition that they can identify and diagnose, but it would not--

Unknown Speaker: You don't take the position that the... or maybe you do, that the legislature of any State could say, we recognize a category of mental abnormality or mental illness.

It hasn't been recognized in any medical or psychiatric literature, but we're recognizing it now, and that satisfies the rule that requires some mental illness element.

You wouldn't say that a State could do that.

Mr. Stovall: --That would not be the argument the State would make.

We're very comfortable with the fact that what we're describing is medically justified.

Unknown Speaker: What is the function of this medical recognition as you understand it under Foucha?

Why do we have this element?

Why do we... why would you say... why do you say that in order to satisfy the mental illness element under Foucha there has got to be a medically recognized category within which the particular individual falls?

Mr. Stovall: I think so that the Court doesn't worry that we confine merely for dangerousness or merely for a class of people that we don't want to be around.

We need to... to be able to civilly commit and provide treatment for them it has to be a medically recognized condition, I--

Unknown Speaker: It's less likely to be abused if there's a categorical approach rather than a purely individual approach.

Mr. Stovall: --That would be correct.

Unknown Speaker: Do you know of any medically recognized condition that has been medically determined to be nontreatable?

Is there any such thing as a medically recognized condition which the medical profession is willing to say is nontreatable?

Mr. Stovall: Not that I'm aware of.

They would say that they're not curable, but not necessarily not treatable.

Perhaps I should try to take the discussion to the criminal side of things and address the issues that you accepted the cross-petition on of Mr. Hendricks.

The State maintains that this is not a criminal sanction as Leroy Hendricks indicates.

A prior... the Allen v. Illinois case in 1986 is the one that we would ask you to turn the attention to, because it is so similar.

While it did provide for commitment instead of punishment, admittedly, there's no reason from a constitutional perspective that that should be significant.

When you looked at the Allen decision, the similarities between the Illinois statute and Kansas statutes are so great, and you found that to be a civil statute.

Even though it was triggered by the commission of a crime, you found that that only limited the group of people that it applied to.

It didn't make it criminal.

Even though the State in that case had beyond a reasonable doubt for a burden, even though Illinois extended to the potential sexually dangerous person the same criminal protections in terms of being able to call their own witnesses, having an attorney, a jury trial and the like, you still found that that wasn't criminal, and even putting the individual in the custody of the Secretary of Corrections and putting them in a maximum secured facility for treatment was not held to be criminal.

Those are all the same kinds of things that we do in the State of Kansas.

Unknown Speaker: Hadn't a similar situation applied to Hendricks at one stage?

I mean, you said everything that happened to him.

He'd been put in prison.

He'd been put in a mental institution.

What was... was the other incarceration like the one in Allen?

Mr. Stovall: Justice O'Connor... I'm sorry.

Justice Ginsburg, it was in 1964 in the State of Washington, and he was sent there under a psychopathic personality statute.

Unknown Speaker: But that was a civil commitment?

Mr. Stovall: Yes, Your Honor.

Unknown Speaker: But not under this current statute that was under some--

Mr. Stovall: In Washington now, you mean?

It was in 1964 and it was a different kind of commitment.

Washington just has their sexually violent predator statute like we have since 1990, so this would have been a much earlier forerunner of what the current version is.

Unknown Speaker: --Could you address the cross-petition question?

Mr. Stovall: Thank you for the opportunity, Justice Kennedy.

The... we think that if you use the Ursery test, which Mr. Hendricks' counsel supported as well, you look to see what the legislative intent was.

Was it civil or criminal?

The language in our preamble and throughout the statute talks about civil, so if it's established it's criminal on the face, then Mr. Hendricks has the burden to show by the clearest proof that the application is so punitive that it becomes criminal.

But in looking at the Kennedy factors, there is only one of those that you can answer yes to, and that is that indeed we have a disability, an affirmative restraint of his liberty.

We don't find it to be a fundamental restraint, but admittedly it's a restraint.

But the rest of the categories, in terms of whether this commitment process has ever been historically viewed as punishment, we would answer no.

We've never looked at civil commitment as punishment.

It does not come into play only on the criminal conviction.

We have to have more than that.

We have to have the mental abnormality and there has to be the likelihood of predatory act.

It doesn't serve the traditional aims of punishment or retribution or deterrence, but it serves the aim on the civil side of incapacitation and treatment so we can change this behavior.

There are... when you run through the seven other factors there, they are distinct differences as to why it's not found to be criminal.

The Allen v. Illinois statute is again extremely important in being able to make those distinctions between civil and criminal, and we would ask that those be the kinds of issues that you look at in making this decision.

When you look at the rights that are afforded to the mentally ill inmates and the sexually violent predators that are in Kansas custody they are very similar.

In fact, the sexually violent predators are extended the same bill of rights that the mentally ill patients have.

That's not the case, though, when you look at Department of Correction inmates and the way that they are treated versus our sexually violent predators.

There is distinct differences in their clothing, their personal property, their telephone and visitation privileges and the like, and so there's a tremendous difference there as well.

Unknown Speaker: If you have a minute, could you go back to Justice Stevens' question?

In Addington, I take it the Court held that you must have... you must say, based on clear and convincing evidence, does Frank Addington require hospitalization in a mental hospital for the protection of others?

How does the Kansas statute meet that requirement in respect to requiring hospitalization for the protection of others?

Mr. Stovall: Because one of the requirements in our definition is that the individual go to a secure facility, a securely confined facility, so that would be similar to the hospitalization.

Unknown Speaker: No, I'm not worried about the part.

Mr. Stovall: Excuse me, Your Honor.

Unknown Speaker: I'm worried about how, by clear and convincing evidence, to show that he is dangerous to others, because what I thought you said is in Kansas you don't have to show this by clear and convincing evidence.

You have to show it by a preponderance of the evidence.

Mr. Stovall: It is one of the elements, Justice Breyer, that we have to show, but again I think the overall burden of proof of being beyond a reasonable doubt--

Unknown Speaker: Suppose we disagree with you.

Suppose we think that the burden of proof that you impose is the preponderance of the evidence.

Then don't you lose the case under our previous precedents?

Mr. Stovall: --The Addington decision clearly talked about, for civil commitment you had to show it by clear and convincing.

You're right but it was more than just simply the dangerousness element.

It also was that you had to show the mental illness, as I understand it, that standard itself.

Unknown Speaker: Both.

It looks like both.

Yes.

Mr. Stovall: Right, and we clearly do that in terms of the mental abnormality, and I understand that's where the issue is for the Court, but you still have to show the likelihood of committing that harm is beyond a reasonable doubt, and so it's showing a 51-percent burden by an 80-percent burden--

Unknown Speaker: What did we mean by dangerousness in that case?

Might not we have meant by dangerousness simply the same thing that's the test here, that he's likely to harm somebody--

Mr. Stovall: --Yes.

Unknown Speaker: --which would have converted that into a preponderance standard as well, if you follow that reasoning.

Mr. Stovall: That would be exactly right, Justice Scalia.

Unknown Speaker: That's not what the opinion says, if you read it carefully.

[Laughter]

But the Kansas... your State courts have not construed the standard to be a beyond-a-reasonable-doubt standard in the classic sense, has it?

In other words, we could say... the Court could say, look, proving likelihood beyond a reasonable doubt really means prove it beyond a reasonable doubt that he will do thus and so, but that isn't what your courts have said, is it?

Mr. Stovall: There has only been one court in Kansas that would have looked at this issue, and that was the... the Kansas supreme court--

Unknown Speaker: Yes.

Mr. Stovall: --made that final determination, and that's not part of their decision.

Unknown Speaker: That's not in their opinion.

Mr. Stovall: They relied just on--

Unknown Speaker: Could I ask you another question, assuming this is not an obstacle.

Imagine an armed robber who has committed many armed robberies, and a psychologist who says he has a sociopathic personality.

Now, under those circumstances, do you believe it would be constitutional, since he may... lots of testimony... commit many more armed robberies, and you have some psychologists who say he has sociopathic personality, would it be constitutional for a State to keep him under the correct standard... clear and convincing, review every year, we're going to look at this over and over... confined in a mental hospital, and how do you distinguish that case from this one?

Mr. Stovall: --One of the distinctions is the level of personality disorder that is there.

Unknown Speaker: Go ahead and answer the question.

Mr. Stovall: The indication in the Foucha decision, for example, was that simply a personality disorder might not be enough for commitment, and that's clearly not what the State has in this condition.

We have a pedophile, a recognized mental disorder that is subject to the commitment, and so the mental condition, the medically justified condition is so much greater than in your example.

Unknown Speaker: Thank you, General Stovall.

Mr. Weilert.

Argument of Thomas J. Weilert

Mr. Weilert: Mr. Chief Justice, and may it please the Court:

The State of Kansas is extending the incarceration of Mr. Hendricks beyond the term of sentence imposed in the plea agreement he reached with the State of Kansas in 1984.

The State should not be allowed to circumvent the constitutional prohibitions against ex post facto and double jeopardy by calling for an effectively permanent incapacitation that's imposed, based upon the commission of criminal acts, a civil commitment for treatment.

Neither should the strict limits of preventive detention outside of the criminal law be broadened to allow such a confinement to prevent the possibility of the commission of a criminal offense at some unspecified point in the future.

To do so would fundamentally undermine a constitutionally guaranteed right of liberty.

We suggest that the Sexually Violent Predator Act is, in fact, a criminal enactment, even though the legislature labeled it a civil proceeding.

Unknown Speaker: Well, didn't the Court in Baxstrom uphold essentially the notion that the State could commit people after they were released from prison in a civil commitment proceeding?

Mr. Weilert: I believe the Court upheld that they could commit after a... pardon me.

After a criminal sentence if they were mentally ill, yes, Your Honor.

Unknown Speaker: Yes, and we have left largely to the States to define what constitutes a mental illness within that framework.

Mr. Weilert: That is correct, however--

Unknown Speaker: And so maybe this boils down to whether this particular condition of pedophilia, or however you pronounce it, qualifies.

Mr. Weilert: --Your Honor, I don't believe that the constitutional standard for mental illness can be the equivalent of any diagnosis that might come out of the DSM, and that is essentially what the State, I believe, is trying to argue.

Unknown Speaker: Well, let's talk about this specific condition of pedophilia and whether that is open to the State to include within the broad concept of some kind of mental illness.

Mr. Weilert: Pedophilia, as I understand it, is diagnosed based upon prior commission of criminal acts.

If pedophilia was sufficient to form the basis for a civil commitment, then any other act such as Justice Breyer was speaking of... armed robbery, or any number of other criminal acts which would be the diagnostic basis for an antisocial personality disorder... would also be sufficient to--

Unknown Speaker: This Court has suggested that may not be so, but is this a different kind of category of mental aberration?

Mr. Weilert: --Pedophilia as opposed to any other of the DSM--

Unknown Speaker: As opposed to a tendency to have an antisocial personality.

Mr. Weilert: --I don't believe there's anything that I have read which would indicate that it is any different than an antisocial personality.

Unknown Speaker: Well, suppose you had a paranoid schizophrenia acute type, and the diagnosis was that the person was dangerous to himself and to others, could you commit there?

Mr. Weilert: That would be acceptable under the normal civil commitment statute, Your Honor, where the commitment is based upon the inability of the person to take care of themselves and make rational decisions about their treatment, and then because the commitment is for the person's own good, he can be civilly committed.

Unknown Speaker: Well, rationality is not a part of the civil commitment preconditions.

Mr. Weilert: Generally, in--

Unknown Speaker: Why is it that you can commit the paranoid schizophrenic and not this person?

Mr. Weilert: --Because the treat... pardon me.

The commitment of the paranoid schizophrenic is for his own good, to help him to overcome his--

Unknown Speaker: But suppose the condition, the condition for his incarceration was he was dangerous to others?

Mr. Weilert: --I don't believe that a paranoid schizophrenic could be committed unless there was first a finding that the commitment would be for his own good.

I believe commitment strictly because of the dangerousness would be unconstitutional.

Unknown Speaker: Well, the supreme court of Kansas, Mr. Weilert, in its opinion, which upheld your... the majority upheld your point of view, said the State could get around... could handle it by simply imposing a life sentence on these people and there would be no constitutional problem.

Does that really solve any problem to say that the State can't do what it does here but it can come back and impose a life sentence on a person for the first pedophilic offense?

Mr. Weilert: Your Honor, it is a decision that the State can make under its criminal... or, criminal powers.

If the State would choose to impose a life sentence on a first-timer there's certainly nothing wrong with that, but even in this case there are a number of things the State can do other than commit some person for a second time because of the criminal actions he's committed.

They can place very restrictive parole conditions.

They can even enact some criminal legislation which would make it illegal for someone with a sex offense to have contact with children in a public place, go around schoolyards, and enforce that criminally.

Unknown Speaker: Why is all that okay?

I don't understand.

I mean, if the principle you're arguing for is correct, why aren't those restrictions just as improper?

Mr. Weilert: The restrictions that I spoke of as far as parole or conditional release in this case--

Unknown Speaker: It's a restriction of his physical liberty.

Mr. Weilert: --It's a restriction of his liberty, but it's not a confinement that is a massive curtailment of that liberty, and I believe that's the distinction, Justice Scalia.

Unknown Speaker: But life imprisonment certainly would be, and one of the arguments that the State makes is, we're doing something gentler and kinder here, that instead of locking him up in a maximum security prison for the rest of his life, we say there's a criminal sentence and maybe... there's not much chance of it, but maybe he'll be all right at the end of the term.

If he's not at the end of the term we put him in another confinement, form of confinement.

Why does the Constitution force the most harsh solution, I suppose is what the State is urging?

Mr. Weilert: The Constitution does not force that, the most harsh remedy.

The State of Kansas at the time of Mr. Hendricks' commission of these acts in 1984 had a procedure, and still does have a procedure where he could be psychologically evaluated and committed for care, if that was in fact necessitated or recommended by that evaluation.

The only limitation on that term of care and treatment, if needed, would be the maximum sentence that could have been imposed by the criminal act, or on the criminal acts, which in this case in 1984 was 45 to 180 years.

Unknown Speaker: Maybe the State has to take the harsher course because the harsher course is the only one that is less manipulable.

Mr. Weilert: I believe that--

Unknown Speaker: I mean, isn't there some fear about... you know, totalitarian regimes don't put people in jail for crimes.

They commit them for mental treatment.

It's a very hard thing to nail down, isn't it, who's mentally ill and who's finally been cured.

Mr. Weilert: --I believe that is a very astute observation, Justice Scalia.

Unknown Speaker: And so mainly to... perhaps to protect against that, the State, if it wants to protect itself, has to take the harsher course.

Mr. Weilert: It is certainly the... or, pardon me, an avenue open to the State to do it that way.

It's not necessarily required, though, because the State could provide for an indeterminate sentence, also, which would be dependent upon the person then proving to the parole authorities that he was safe to be at large.

Unknown Speaker: But surely that would be manipulable, too, if that is to be part of the test, if the parole authorities are to have that sort of discretion.

Mr. Weilert: Well, certainly the parole authorities would have to have some discretion, but it would be... it would not be manipulative in the same way that the States could formulate a plan to commit persons based solely upon dangerousness, which we believe this act provides that opportunity.

Unknown Speaker: What's the... your best authority from this Court for the proposition that you can only have a civil commitment for the best interests of the person and not for the safety of society?

Mr. Weilert: It is... in Addington v. Texas the Court basically said the commitment is for those who cannot take care of themselves, and that is where the being in the best interests of the person comes from.

The Court--

Unknown Speaker: What is the rationale... if that is the correct reading of Addington, what is the explanation for it, that everyone has a constitutional right to commit a crime once before he can be committed?

Mr. Weilert: --No, Your Honor, I don't believe anyone has a constitutional right to commit a crime.

However--

Unknown Speaker: Before he can be committed civilly.

Mr. Weilert: --It would not require the commission of a crime to be committed civilly, but it would require the finding of a mental disease or mental illness and the finding of dangerousness both by--

Unknown Speaker: No, but you say he can only be committed if it's for his own good, if we're talking about civil commitment.

Mr. Weilert: --I believe that that is the underlying basis for civil commitment.

Unknown Speaker: No, I thought Addington said dangerous to others, didn't it, as well as dangerous to himself?

Mr. Weilert: It does say that it is dangerous to himself or others, and that is in conjunction with the need that... or, pardon me, in conjunction with the fact that he is unable to care for himself and needs commitment.

Unknown Speaker: But Addington was just talking about the burden of proof when you're going ahead with civil commitment.

It didn't purport to categorize every single situation which would justify a civil commitment, if you met the burden of proof.

Mr. Weilert: While Addington was a procedural due process case, I believe the concept that a civil commitment has to be based upon dangerousness and mental illness was carried into fruition by this Court in Foucha v. Louisiana.

We would suggest that the primary reason for the Kansas statute having been passed was to continue the incarceration of persons who were being released from confinement following their conviction and sentence on sexual offenses.

That finding was made by the Kansas supreme court, where it said that the primary objective was to continue incarceration and that treatment was incidental at best.

That's further--

Unknown Speaker: Mr. Weilert, are you complaining just about timing, and suppose Mr. Hendricks is charged, indicted, found guilty, and then instead of having the ordinary criminal incarceration, at that point we have this SVP proceeding, and so although he has a criminal conviction he's never... the time that he served has been pursuant to this special proceeding.

Would there be anything unconstitutional about that?

Mr. Weilert: --That's the situation in Colorado v. Specht, or Specht v. Colorado, where the Court approved that type of situation, where instead of a specific term of criminal incarceration it allowed for an indeterminate term and found that it was, in fact, a criminal incarceration even though it was for the purpose of incapacitation rather than retribution.

Unknown Speaker: But that raised... that... correct me if I'm wrong.

I thought that case raised a procedural due process question.

Mr. Weilert: That was a procedural claim, Your Honor, where there was not a hearing for that second sentencing procedure, but that would be an appropriate type... Kansas could make the decision at the time of the original conviction to go to a sexual psychopath type law, much as it could have done back in 1984 when Kansas did have such a law in effect.

Unknown Speaker: So you're saying that they could have done it on the spot, but they can't do it 5 years later.

Is that--

Mr. Weilert: --It's now 12 years later, Your Honor, and the reason they can't do it now is because first of all it is a continue... a second incarceration for the same conviction, the same criminal act that he committed back in 1984.

Unknown Speaker: Secondly, we are talking about a situation where, if... even though this act is purported to be civil, it's in fact criminal, because the intent and purpose and effect of the legislation is criminal, and I would suggest that even back in 1984, if the only thing that the State had to prove was a mental abnormality, that there would be some question about whether the commitment could have occurred at that time, rather than proving a mental illness which could be treated.

So you're modifying the answer that you first gave.

You're not so sure that it could have been done immediately after the conviction.

Mr. Weilert: There could have been a civil, or a commitment for treatment done in 1984, yes, if there had been a... if there had not been a criminal sentence imposed at that time.

In the Kansas supreme court's decision, it went on, after saying that the main purpose of the incarceration, or the... yes, the incarceration was for punishment and not for treatment, it--

Unknown Speaker: Well, they didn't use those words, punishment, did they?

Mr. Weilert: --Pardon me, for incapacitation rather than treatment.

Unknown Speaker: Right.

Mr. Weilert: And incapacitation has been recognized by the Court as one of the--

Unknown Speaker: And do you say that no treatment is being provided now to your client?

Mr. Weilert: --The record reflects that the Kansas supreme court made that finding based upon the evidence presented both at the trial court and the habeas court, where the head of the treatment facility said that the persons there were receiving essentially no treatment other than--

Unknown Speaker: And what about today?

Mr. Weilert: --Today, it's my understanding there is some group therapy being given.

There... I don't believe there's any indication on the record that such therapy is effective or has any hope of being effective to overcome the condition of pedophilia, primarily because, as the State's expert testified, pedophilia is a diagnosis that, once made, remains with the person forever.

Unknown Speaker: Well, there's no question, I gather, that this man is very much likely to commit sexual offenses against children in the future, if released.

Mr. Weilert: There is certainly no--

Unknown Speaker: Strong evidence to that effect.

Mr. Weilert: --There's certainly no doubt that Mr. Hendricks presents a risk of committing further crimes if released.

Unknown Speaker: To children.

Mr. Weilert: To children.

That is what his previous crimes have been, yes.

But I don't believe that we can incarcerate people solely because they have the possibility of committing a criminal act at some point in the future.

Unknown Speaker: So what's the State supposed to do, just wait till he goes out and does it again?

Mr. Weilert: No, Chief... Mr. Chief Justice.

The State has other opportunities, or, pardon me, other means available to it.

It can, you know, impose very stringent conditions of parole, have him repeat... pardon me, report very frequently, require him to stay away from children, require him to stay away from schoolyards.

It can, for people who have not yet been convicted, of course, do all sorts of things with the sentencing guidelines.

Unknown Speaker: Well, we have a person here who's been convicted at least of two offenses most immediately and, I gather, some in the past.

Mr. Weilert: I believe a total of five, Your Honor.

Unknown Speaker: Yes.

Mr. Weilert: That is correct, and... but the State still has the ability to put restrictions on that person to lesson the risk.

Unknown Speaker: Well, I guess we all know as a practical matter that's not very effective, many times.

We read about it every day, and I guess we don't have to avoid that kind of general awareness of concern about just saying on a piece of paper, don't go near a schoolyard and don't do this again.

It just isn't very effective with someone with this abnormality, is it?

Mr. Weilert: Your Honor, the only way to be totally effective would be to lock up anyone who would possibly commit a criminal action in the future.

Unknown Speaker: No, no.

No, we're talking--

--Mr. Weilert, I assume that many... I don't know what the statistics are, but within a certain age group the recidivism rate for anybody released from prison may be as high as 80 percent, so you could say for everybody walking out of prison he's likely to commit the same crime.

Mr. Weilert: I believe that is correct.

Unknown Speaker: Isn't that the case?

I guess we could--

--And maybe we could preventively detain everybody that's released because he's committed one crime and is likely to commit another one.

Mr. Weilert: In order to do that, Your Honor, we would have to be talking about a preventive detention--

Unknown Speaker: I'm being facetious, Mr. Weilert.

[Laughter]

I'm puzzled about your response to Justice O'Connor.

You said that they could put all these other restraints on the individual.

On a preponderance of the evidence that somebody's likely to commit a rime, can you put all these restraints on people, they can't go near schoolyards, and so forth, or are you talking about as part of a sentence after being convicted of a crime?

Mr. Weilert: --That's correct, Justice Stevens.

As a part of the parole conditions after being released from incarceration.

Unknown Speaker: Yes, but the statute is dealing with the problem presented by someone who's served his sentence entirely, and the criminal punishment, power to punish him criminally has been exhausted.

There's still a threat there, and I frankly don't see the difference between that case and one where you just indict somebody who's been caught but never convicted, and the question is, can you do those other things to that person without some kind of proof of a mental abnormality by some standard?

I don't think the difference between going to jail and being subjected to a lot of other restraints can just answer this case, because the basic question in the case is what is the threshold showing that must be made to treat such a person, or take him out of society, other than as punishment for a crime?

And I think we're all assuming that this is not... I mean, that the punishment for a crime has already been done, and I don't... as I say, I don't see why it makes any difference whether the person's been punished or hasn't... or has just been indicted.

Frankly, I don't see the constitutional distinction there.

Mr. Weilert: If... pardon me, Your Honor.

The commitment could not occur simply because someone has been indicted, I believe, unless there was a showing that the person was mentally ill.

In Allen v. Illinois the Court found that the... that Mr. Allen was mentally ill.

I believe he had schizophrenia.

Unknown Speaker: Yes, but what's the magic to the term mentally ill?

Why can't they call it having XYZ personality factor, and they can prove it beyond a reasonable doubt that the person with that factor in all probability, beyond a reasonable doubt or beyond clear and convincing evidence, will do bad things, rob banks, hurt children?

Why isn't that enough, if the XYZ factor is something to do with the person's character, whether you call it mentally illness or not?

I don't quite understand the magic to the term, mentally ill.

Mr. Weilert: Your Honor, I don't believe there is any magic to the term mentally ill, but there is a point, I believe, at which the State cannot commit someone simply because they have a history of prior commitment, or criminal act, and based upon those prior commitments is, they're predicted to commit another criminal act in the future.

Unknown Speaker: Everyone agrees with that, I think.

The issue is, in addition, you have to be mentally ill, and it's like civil commitment, and how do you decide whether for legal purposes a person is sufficiently mentally ill?

I suppose there are some people who are very dangerous, whom every psychiatrist would say are crazy beyond a doubt and are going to murder 15 other people unless they're locked up, and I'm assuming that it would be possible to lock up that person, but not lock up somebody who commits a lot of crimes, whom every psychiatrist would say there's nothing wrong with except he's a sociopath, which means he commits a lot of crimes, all right.

I take that as an assumption.

So what's the definition distinguishing the one from another, and what I'm going to ask you about is the ALI's definition, which had for a different purpose to say that a person was insane if, as a result in part of a mental defect, he lacked substantial capacity, in this case it would be to conform his conduct to the requirements of law, which would suggest a kind of irresistible impulse, a compulsion.

And we know that there is in one of the psychiatric associations' brief evidence that some psychiatrists call this a kind of compulsion, so is the ALI test a possible test?

If not, what is, and if we have some psychiatrists saying this is somewhat compulsive, and others saying not, what do we do?

I think your response is that we tried this test for criminal conviction and it turned out to be a mess.

Is there any reason it's likely to be better for psychiatric commitment?

It's always possible to get somebody to come in with evidence on one or the other side of that irresistible compulsion rule.

The courts adopted that for criminal... for insanity defenses and it turned out to be chaos.

Mr. Weilert: I believe that is correct, Justice Scalia and Justice Breyer.

The--

Unknown Speaker: So your view, then, is that you could not lock up a person whom every psychiatrist would say has a totally uncontrollable compulsion to murder people, and they want civilly to commit him... civilly to commit him, as... or a person who's going to kill herself, or himself, uncontrollable impulse, though the person otherwise seems rational.

We could not civilly commit such a person?

Mr. Weilert: --In that circumstance, Your Honor, I believe that the civil commitment might be appropriate because it would be for the good of the person being committed to prevent him from killing himself and for the protection of society, but it would be based upon the original finding that the civil commitment had to be based upon a mental illness rather than simply the prior commission of a crime.

Unknown Speaker: In any event, you agree with General Stovall, don't you, that this matter of what the mental state is, subject to constitutional limitations, is for the State to decide, and the State here has defined something called mental abnormality that's short of mental illness?

Mr. Weilert: I believe that the State has latitude in deciding whatever the condition is for civil commitment so long as it is something more than just a condition based upon the prior commission of crime and the risk of commission of crime again in the future.

Unknown Speaker: Well, what's the ethical calculus that makes the dangerousness to oneself so much of a higher order of priority than dangerous to 10 other people?

Mr. Weilert: I... if I stated that I did not mean to do so.

I believe that danger--

Unknown Speaker: Well, I mean, that's the logical consequence of your answer that you must find that it's in the person's own welfare, and I suppose we could say it's in your own welfare to prevent you from committing crimes, but leaving that aside, you seem to say it must be in the patient's own welfare to be committed before there can be a civil commitment.

Mr. Weilert: --I believe that's correct, because--

Unknown Speaker: I'm asking you why that is so.

Why is that so?

Mr. Weilert: --Because the person is unable to care for themselves.

Unknown Speaker: But what's the reason for--

--Why limit it to that?

Mr. Weilert: If we do not limit it to that, I believe we then... there's no logical stopping place where we can say that a commitment for dangerousness alone would not be sufficient, and--

Unknown Speaker: Well, what about Justice Breyer's example of someone who's said by every psychiatrist who has seen him, if he's at large he's going to murder people?

Now, do you say that person can or cannot be civilly committed?

Mr. Weilert: --Well, as I understand the ALI definition--

Unknown Speaker: Well, no, I'm not talking about the ALI.

I'm just asking, all the psychiatrists find a person is going to... if he's at large he's going to murder people.

Now, can that person be civilly committed?

Mr. Weilert: --Based on that alone?

I--

Unknown Speaker: Well, and that it's a form of mental illness, as one would hope they would find.

Mr. Weilert: --Your Honor, I believe we would be treading on very thin ice, because that in effect is allowing for a commitment based upon what someone might do in the future, and it would have to be based upon a finding of mental illness, which we once again come back to that has to be based upon something more than the commission of the crime in the past and the possibility of committing a crime in the future.

Unknown Speaker: Well, Allen v. Illinois certainly upheld a civil commitment of persons charged with sexual offenses who are sexually dangerous persons suffering from a mental disorder and having criminal propensities to the commission of sex offenders... offenses, particularly, in that case, sexual molestation of children.

Now, the Court upheld that notion, and referred to a mental disorder.

The only difference was that in that case it was offered as an alternative to incarceration for the criminal offense as opposed to here, where it is proposed subsequent to serving the sentence.

Now, does that make a big difference if it in fact is a civil commitment?

Mr. Weilert: Your Honor, in Allen the commitment there was in lieu of a criminal prosecution.

Here, the State has already had a criminal prosecution, and in Allen the justification the Court gave was that it disavowed... Allen... or, pardon me, Illinois disavowed any interest in punishment in lieu of the civil commitment.

In this case, the same procedure could have perhaps been used, except the--

Unknown Speaker: I'm just asking you if that one factor should make a difference.

Mr. Weilert: --Yes, Your Honor, it should.

The commitment in Allen was of a person who was... had a treatable mental illness, a schizophrenic.

In this case there's no--

Unknown Speaker: Well, but the statute doesn't refer to that.

It speaks in terms of a mental disorder, having criminal propensities to the commission of sex offenses, and it's not at all this situation.

Mr. Weilert: --But in Allen the... this... the distinction was that it disavowed punishment.

In this case, the State does not.

It was for treatment.

In this case there's no treatment, and that would conclude.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Weilert.

The case is submitted.